A man who was ejected
from a city council meeting for giving a Nazi salute in the presiding officer’s
direction did not suffer a violation of his First Amendment rights, the Ninth
U.S. Circuit Court of Appeals ruled yesterday.

As the salute could
reasonably have interpreted as supporting or furthering the disruption of the
meeting that had been occurring in the room, a majority of the divided panel
agreed with District Judge Ronald M. Whyte of the Northern District of
California that removing Robert Norse from the chambers was reasonable and that
the mayor and council members were all entitled to qualified immunity.

The basis of Norse’s 42
U.S.C. § 1983 action was his eviction from two meetings of the Santa Cruz City
Council. As the episodes were videotaped, the underlying facts were not disputed
by the parties.

Norse was shown engaging
in a parade about the council chambers, protesting the council’s action at a
2004 meeting.

Disruptive Member

At a 2002 meeting, Norse
gave a Nazi salute in support of a disruptive member of the audience who had
refused to leave the podium after the mayor ruled that the speaker’s time had
expired, and that the portion of the meeting devoted to receiving oral
communications from the public had ended.

The mayor had resumed
council business by reading announcements and apparently had not noticed
Norse’s gesture, but Councilman Tim Fitzmaurice called his attention to Norse’s
behavior.

Norse was then ordered
to leave the meeting.

In a 2004 unpublished
disposition, a Ninth Circuit panel unanimously upheld the validity of the
council rules that were being enforced at the time of Norse’s ejections, which
authorized removal of “any person who interrupts and refuses to keep quiet…or
otherwise disrupts the proceedings of the Council.”

The court, however,
reversed the dismissal of the action, holding that there was no way of
assessing the reasonableness of the mayor’s actions on the basis of the
pleadings alone, particularly his action in ordering Norse’s 2002 ejection.

On remand, Whyte ruled
that the mayor acted reasonably in ordering both of Norse’s ejections because
Norse was supporting the conduct of persons in the meeting who were causing a
disruption.

Protest Gesture

In her opinion for the
appellate court, Judge Mary M. Schroeder agreed, explaining that Norse’s salute
“had little to do with the message content of the speaker whose time had
expired,” but rather was a protest to the mayor’s good faith efforts to enforce
the rules of the meetings to maintain order.

Even if Norse’s free
speech rights had been violated, Schroeder posited that this would not have
been clear to a reasonable person in the mayor or council’s position, given the
circumstances and threat of disorder presented.

As for Norse’s behavior
at the 2004 meeting, the jurist said his conduct was “clearly disruptive” and
there was no doubt that ordering Norse’s ejection in that instance was a
reasonable application of the rules of the council.

Judge Diarmuid F.
O’Scannlain joined Schroeder’s opinion, but Senior Judge A. Wallace Tashima
only joined in the portion affirming the district court’s dismissal of Norse’s
claim based on the 2004 ejection, insisting that Norse’s free speech rights
were violated by his removal from the 2002 session.

Tashima argued that the
record could support an inference that Norse was excluded from the 2002 meeting
because the city officials disagreed with the views he expressed by giving his
silent Nazi salute.

Reasonable Inferences

Because the district
court’s procedure in granting judgment to the defendants on qualified immunity
was akin to a summary judgment proceeding, Tashima opined that the appellate
court was required to draw every reasonable inference in favor of Norse.

“It is uncontroverted
that Norse’s Nazi salute lasted only a second or two and, in the course of
rendering that salute, Norse uttered no word or other sound,” Tashima said,
reasoning that since the council permitted silent, visual speech, such as the
displaying of signs at its meetings, so long as such speech did not block the
view of or otherwise interfere with other meeting attendees, that Norse’s
gesture complied with the council’s rules.

He contended that the
gesture itself could not have been disruptive since the mayor had not even
noticed it and no audience members reacted to it, and therefore there was no
justification to remove Norse from the hearing.

Tashima also said the
majority’s ruling that the city officials were entitled to qualified immunity
was “just plain wrong,” since clearly established law mandates that speech at a
municipal meeting could not be suppressed unless it is actually disruptive.